CASABURRO v. GIULIANI

September 29, 1997

JOHN E. CASABURRO, Plaintiff, against MAYOR RUDOLPH GIULIANI; THE CITY OF NEW YORK; THE NYC POLICE DEPT./OFFICER ( # 13318) EDWARD STEINMACHER; THE COMMAND OF THE 10TH PRECINCT NY; THE CRIMINAL COURT OF THE CITY OF NY; AND MIDTOWN COMMUNITY COURT/CLERK D. VASTI, ET AL., AND OTHER DEFENDANTS (NAMES UNKNOWN), Defendants.

Pro se plaintiff John Casaburro ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983 seeking damages of $ 10,000,000 for alleged violations of his civil rights at the time of his arrest. Plaintiff was arrested on October 12, 1994, for solicitation of a prostitute. He pled guilty to a lesser charge of disorderly conduct, for which he was sentenced to a single day of community service, attendance at a health education/prostitution class, and a fine of $ 45. In addition, his truck and the tools contained therein were confiscated. On January 24, 1995, plaintiff initiated an action against the above-named defendants alleging multiple violations of his constitutional rights. His Complaint was dismissed sua sponte (Griesa, Ch. J.) based on Plaintiff's guilty plea and subsequent conviction. Plaintiff appealed. On June 7, 1995, the Court of Appeals vacated the judgment and reinstated Plaintiff's Eighth Amendment claims.

The Complaint alleges that Plaintiff's constitutional rights were violated by the defendants' imposition of excessive punishment, cruel treatment, and excessive fines prohibited by the Eighth Amendment. See Complaint ("Compl.") at P 4. Plaintiff argues (1) that his treatment by defendants constituted cruel and unusual punishment proscribed by the Eighth Amendment; and (2) that defendants' failure to return his truck and tools amounted to an excessive fine.

Before the incident in issue, Plaintiff was a politician, house painter and contractor. See Compl. at PP 10, 11. On the night of October 12, 1994, Plaintiff drove his leased truck, in which he stored the equipment used in his house painting business, to 11th Avenue and 24th Street in Manhattan. Id. at PP 6, 10. There, he encountered a woman with whom he discussed "oral sex and money." Id. Plaintiff was subsequently "surrounded by police" and learned that the woman with whom he had been conversing was an undercover police officer. Id. at P 6. Plaintiff was arrested for solicitation of a prostitute, his truck and tools were seized, and he was brought to the 10th Precinct. Id. at PP 7, 8, 10.

Plaintiff and six others were placed in a holding cage "that had no seats, no water, poor ventilation." Id. at P 9. Plaintiff notified the arresting officers that he was under a chiropractor's care for back problems and complained that being tightly handcuffed behind his back was inhumane. Id. at PP 8, 9. He was then re-handcuffed to a hook approximately 12 inches above the floor. Id. at P 9. On complaining that this was worse, Plaintiff was cuffed to the front of the cell in a standing position. Id. He still complained that the handcuffs were too tight. Id. Plaintiff asserts that he was forced to stand upright, without sleep or water, tightly "handcuffed for over seven hours." Id.

The following morning, Plaintiff was transported to the Midtown Community Court, where he was kept waiting in a van for over half an hour with his hands cuffed behind his back. Id. at P 13. Plaintiff reportedly begged Officer Steinmacher to loosen the cuffs, put them in front of Plaintiff or cuff him to the van. Id. Plaintiff informed Office Steinmacher of his back/neck condition. Id. Plaintiff also requested water which was denied until "the tail end of this ordeal," when Plaintiff was given some water by Steinmacher's partner. Id.

Plaintiff pled guilty to the lesser charge of disorderly conduct. Id. at P 14. Plaintiff was sentenced to one day of community service, attendance at a health education/prostitution class, and a fine of $ 45. Id. Plaintiff's attempts to retrieve the truck he leased were impeded by the "threat of an additional fine of $ 1,200 to $ 2,400," presumably to be paid prior to the release of the truck. Id. at PP 14, 16. Plaintiff concedes that the truck was eventually returned to its owner, the Ford Motor Company. See Plaintiff's Reply to New York City Motion to Dismiss at P 5. Plaintiff asserts further that he was held a second time by Clerk Vasti, who refused to acknowledge Plaintiff's completion of his community service obligation until he received computer confirmation. Compl. at P 18.

II. Discussion

A. Legal Standard Applicable to a Motion to Dismiss

A motion to dismiss must be decided based on the allegations contained on the face of the complaint. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). However, the complaint must be construed liberally where the plaintiff is proceeding pro se. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam). In deciding such a motion, a district court must accept as true all of plaintiff's factual allegations, Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986), and the allegations must be "construed favorably to the plaintiff." LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). Such a motion cannot be granted simply because recovery appears remote or unlikely; "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Rather, dismissal is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Furthermore, a motion to dismiss "need not be granted in part nor denied in toto but may be granted as to part of the complaint and denied as to the remainder." Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir. 1982). "This standard is applied with even greater force where the plaintiff alleges civil rights violations . . . ." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).

B. Section 1983

Section 1983 provides a civil action for the deprivation of constitutional ...

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